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Wednesday, September 30, 2009

Chinatown Part III: The Two Victims

Look for the burgeoning international celebrity crime story of Roman Polanski’s arrest in Switzerland to turn into another global culture war about American mores with one spin emphasizing US Puritanism and punitiveness versus European civility and tolerance, and the other spin emphasizing US concern for victims and European decadence and aristocratic disdain for popular fears.  Enjoy what is certain  to be months of coverage with attention to a few ironies from the golden penal state.  Specifically:

(1)  Polanski is himself the chief victim of the most celebrated/transfixing crime in California (arguably US history); the 1969 murders of his wife, actress Sharon Tate, and his nearly born son (she was within weeks of delivery), and four others (three of them close personal friends), by cohorts of psycho-killer-guru Charles Manson.  I argued in a post earlier this summer that the Manson killings and subsequent trial, which transfixed the state and nation for weeks during that pivotal year, helped to reset California’s politics to the kind of “leave no prisoner behind” liberal/conservative consensus we have on tough punishment that has dominated the state ever since.  (I’m continuing to gather evidence that is so far generally supportive of that claim and hope to have a short paper up later this fall).  As a victim of a sexually tinged murder of his wife and child, Polanski is a “super-citizen” of the Republic of California (see, chapter 3 of Governing through Crime), viewed as an eternally recurring victim, suffering ever renewed damage by the memories of his savage loss as each Manson family prisoner comes up for a parole hearing, and accorded a growing set of specific rights in our constitution.  However, as a fugitive from a child sex abuse crime he is at least presumptively guilty of (having pled guilty and fled) he finds himself on the other side of that coin, accorded no element of human empathy by the state or its leaders, protected only by the increasingly shrinking set of federal constitutional rights accorded defendants and prisoners.  Polanski’s best defense is that the murder of Sharon Tate made him do it.  California voters recently enshrined victim rights in the Constitution in a voter initiative that compared the victim experience of parole hearings for murderers to being tortured.

(2)  If Polanski’s international supporters are surprised at California’s endurance on this issue they should not be.  California’s willingness to prosecute crimes to the fullest possible extent of the law was soberly marked last week with the death in prison of Susan Atkins, the “Manson girl” who stabbed Polanski’s wife and son to death whose death from brain cancer came after almost forty years in prison (read her LA Times obit).  Atkins, the longest serving woman in California history (but we’ve got a lot of history to make) was recently denied parole for the umpteenth time, being found a potential risk to Californians despite meeting the board in a hospital gurney (her leg was amputated as part of cancer treatment) with a prognosis of only months to live. 

(3)  Although I haven’t checked the sentencing range for the count of unlawful sex with a minor in 1977, it is almost certainly far lower than it would be today.  California’s new Determinate Sentence Law had just come into effect and the new fixed ranges (based on statistical norms for the indeterminate sentencing practice) were incredibly short by contemporary standards.  In the decade following Polanski’s flight, public concern about child sex abuse would mushroom into far ranging prosecutions of day care workers and others for lurid and implausible (and unlike Polanski’s reported assault, largely fabricated) crimes in which scores of people were sentenced to decades in prison (some of them now released and exonerated).

(4)  America’s penal state makes big city prosecutors potential political stars as crime fighting heroes, but also exposes them to the full fury of the vengeful public when their choices do not line up with the "maxi-max" principle (the maximum punishment for the maximum number of  people).  LA prosecutor Steve Cooley is notoriously “left” of the law enforcement consensus on issues like three strikes, drug treatment not incarceration, and the death penalty.  Precisely because of that he probably felt vulnerable to any accusation that he was being soft on a Hollywood criminal fugitive charged with sexually assaulting a minor, whose supporters continued to make law enforcement, and prosecutors specifically, the bad guys.

Posted by Jonathan Simon on September 30, 2009 at 11:50 AM in Criminal Law, Culture, Jonathan Simon | Permalink


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For all the ironies, this was not sex with a minor. Polanski forcibly raped someone who was also a minor. But this is a not a statutory rape prosecution.

Posted by: TJ | Sep 30, 2009 2:07:07 PM

Interesting post. Regarding (2), is it true, as I've heard speculated, that California had not pursued extradition for many years, and that it was only the recent attempt by Polanski, through his lawyers, to clear his status that "awakened the sleeping dog"?

Posted by: not an expert on this issue | Sep 30, 2009 12:30:25 PM

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